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2009 DIGILAW 892 (CAL)

Khajer Sheikh v. STATE OF WEST BENGAL

2009-12-08

D.P.SENGUPTA, Prabhat Kumar Dey

body2009
JUDGMENT Debiprasad Sengupta, J. 1. THIS appeal is directed against the judgment and order of conviction and sentence dated 15.2.2002 passed by the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnagar in Sessions Case No. 11(11) of 1998 (Sessions Trial No.DC of June, 2000) thereby convicting the accused appellants under section 302/34 of the Indian Penal Code and sentencing each of them to suffer imprisonment for life and to pay a fine of Rs. 1,000/- each, in default, to suffer rigorous imprisonment for a further period of six month each. Appellants were also convicted under section 148 IPC and were sentenced to suffer rigorous imprisonment for three years each. 2. THE prosecution case, in short, is that on the basis of the complaint lodged by P.W.I, a case was registered with Dhubulia Police Station being Dhubulia Police Station Case No.53/97 dated 4.5.97 under section 326/304/34 of the Indian Penal Code. On completion of investigation, chargesheet was submitted under section 326/304/34 of the Indian Penal Code against all the accused persons. Charge was framed by the Trial Court under section 148 of the Indian Penal Code and also under sections 302/34 of the Indian Penal Code. In the FIR, it was alleged that on 4.5.97 at about 7 p.m. when the husband of the informant was returning from the Ration Shop of P.W.4 after taking kerosene oil from the said shop and when he reached the metal road, he was attacked by the accused appellants and was assaulted with sharp-cutting weapons. It was stated in the FIR that on hearing the shout of her husband, the informant rushed to the place of occurrence which was on the metal road and found that her husband was still alive. She took her husband on a van and brought him to the hospital but on the way, the victim succumbed to his injuries. It was alleged in the FIR that it was the "firm belief of the informant that the assailants, whose names were disclosed in the FIR, were involved in the incident of assault. To prove its case, the prosecution examined as many as 11 witnesses including the Investigating Officer and the Autopsy Surgeon. None was examined on behalf of the defence. Defence was a plea of innocence and of false implication. 3. To prove its case, the prosecution examined as many as 11 witnesses including the Investigating Officer and the Autopsy Surgeon. None was examined on behalf of the defence. Defence was a plea of innocence and of false implication. 3. P.W.1, Ajibar Rahaman was the scribe of the FIR and he stated in his evidence that he wrote out the complaint as per the dictation of the informant (P.W.3). He further deposed that he wrote out the complaint at the police station on the next day of the incident and he did not see any incident of assault upon the victim. P.W.2 was a witness to the recovery of the dead-body. P.W.3 (Mahima Bibi), who was the wife of the victim, Patai @ Akbar Shaikh claimed herself to be an eye-witness to the incident of assault. In her evidence, she stated that when her husband was returning home after taking kerosene oil from the M.R. Dealer (P. W.4), he was attacked by the appellants and after hearing his shout, she rushed to the place of occurrence along with his daughter (P.W.7) and mother-Khodejan Bibi. She further deposed that after reaching the place of occurrence, she found that the accused appellants were fleeing away from that place. P.W.4 was a Kerosene Dealer from whose shop the victim after taking, kerosene oil, was returning home. He did not say anything about the alleged incident of assault. P.W.5 was one Nur Mahammad Sk., who was a post-occurrence witness and he deposed that after hearing the shout, he rushed to the place and found that the dead-body of Patal Shaikh was lying on the road near the Ration Shop. He could not say anything about the alleged incident of assault. P.W.6 (Ramjan Mondal) was also a post-occurrence witness and was a witness to the inquest. P.W.7 (Narju Bibi) was the daughter of the victim. She claimed herself to be an eye-witness to the incident and she stated in her evidence that on hearing the shout, she rushed, to the place of occurrence along with her mother and didima (khudi) and found that Kalim, Ajmir, Khajer, Moiroddin, Kalu, Gias and Jaher were assaulting her father with a 'Da'. She also found sufficient bleeding injuries on the body of the victim and she also found Sohrab and Hamid at that place. P.W.8 (Surabuddin Shaikh) was the nephew of the victim. She also found sufficient bleeding injuries on the body of the victim and she also found Sohrab and Hamid at that place. P.W.8 (Surabuddin Shaikh) was the nephew of the victim. He deposed that on hearing the shout of his uncle, he went to the place and found that Kalim, Ajmir, Khajer, Moiroddin, Jaher, Kalu and Gias were chopping his uncle with a 'Da. After assaulting his uncle, the miscreants left that place and after that, Narju, her mother (Mohima Bibi) and Narju's didima also went there. In his cross-examination also, he stated that he disclosed to the police that when he went to the place of occurrence, he found that the accused appellants were chopping his uncle and they went away towards the east after committing such assault. P.W.9 was Dr. Amal Ch. Biswas, an Autopsy Surgeon who held the post-mortem examination over the dead-body of the victim, and he found the following injuries on the dead-body of the victim: "1. One big incised wound over the left side of the neck extending upto the right side of the cheek half inch below the right eye-ball measuring 10" x 4" x bone deep cutting cervical vertebra and mandible cut. 2. One incised wound over the right upper chest on front side measuring 4" x V2" x bone deep. 3. One horizontal incised wound over the middle portion of the abdomen extending from the left flungs upto the right side of the abdomen 2" right side from the mid-line. Intestine came out through the wounds measuring 9" x 2" x cavity deep." He also opined that the death of the deceased was due to shock and haemorrhage as a result of the injuries mentioned above which was ante- mortem and homicidal in nature. 4. P.W.10 (Akkari Ghosh) was a Police Constable who took the dead-body of the victim to Nadia District Hospital Morgue for post-mortem examination. P- W.11 (Balaram Sarkar) was the Investigating Officer of the case. He took up the investigation, visited the place of occurrence, interrogated the witnesses and on completion of investigation, submitted the chargesheet. It is the contention of Mr. Adhikary, the learned Advocate appearing for the accused appellant No.3-Kalim @ Kalimuddin Sheikh that in the present case, conviction is mainly based on the evidence of three witnesses, namely, P.W. Nos. 3,7 and 8. It is the contention of Mr. Adhikary, the learned Advocate appearing for the accused appellant No.3-Kalim @ Kalimuddin Sheikh that in the present case, conviction is mainly based on the evidence of three witnesses, namely, P.W. Nos. 3,7 and 8. It is the submission of the learned Advocate that P.W.3 cannot be an eye-witness to the alleged incident of assault as she herself deposed in her evidence that she went to the place of occurrence after the assault was over. The learned Advocate further points out that although she stated in her evidence that she found the accused appellants fleeing away from the place of occurrence, she never disclosed this fact in the FIR. 5. IT is the further contention of Mr. Adhikary, the learned Advocate of the appellant No.3 that P.W.7 (Narju Bibi), daughter of the victim, also cannot claim herself to be an eye-witness to the alleged incident of assault. Her presence at the place of occurrence was not disclosed by P.W.3 and her presence at the place of occurrence also does not find place in the FIR. Although she submitted that she found Sohrab and Hamid at the place of of occurrence, those two witnesses were not examined by the prosecution. P.W.8 (Surabuddin Shaikh), the nephew of the victim also cannot be an eye-witness to the alleged incident of assault as his presence at the place occurrence does not find place in the FIR. P.W.3 (Mahima Bibi) never stated in the FIR that her nephew (P.W.8) was present at the place of occurrence. P.W.7, who also claimed herself to be an eye-witness, also had not mentioned the name of P.W.8 in her evidence. In such circumstances, it is submitted by Mr. Adhikary, the learned Advocate appearing for the appellant No.3 that. P.W. Nos.7 and 8 cannot be the eyewitnesses to the alleged incident of assault and they were post-occurrence witnesses. 6. IT is the next submission of Mr. Adhikary, the learned Advocate of the appellant No.3 that although it is the evidence of P.W.3 that after the incident, there was a gathering of more than 100 people, none was examined from the neighbouring people and the conviction is mainly based on the evidence of P.W.3 (Wife), P.W.7 (Daughter) and P.W.8 (Nephew), who were the near relations of the victim and were very much interested. According to Mr. According to Mr. Adhikary, non- examination of the neighbouring and disinterested people, casts a serious doubt on the prosecution case. The learned Advocate of the said appellant No.3 by referring the evidence of P.W.I, submitted that the very basis of the prosecution, which was the FIR, was not at all written as per the instruction of the P.W.3. P. W. 1 had specifically stated in his evidence that he wrote out the complaint at the police station on the next day of the incident and in his cross- examination, he stated that Mahima Bibi (P.W.3) was not present when he wrote out the complaint and Mahima Bibi did not put her L.T.I, in the complaint in his presence. He also stated in his cross-examination that he could not say as to whose L.T.I, was there on the complaint. It is submitted by the learned Advocate of the said appellant No.3 that there is also every doubt about the place of occurrence. After the alleged incident of assault, no blood-stained earth or controlled earth was seized by the Investigating Officer the case. 7. IT is finally submitted by the learned Advocate of the appellant No.3 that there was no recovery of weapon of assault from any of the accused appellants. There was no seizure of blood-stained earth, controlled earth and wearing apparels from the place of occurrence and nothing was sent to F.S.L. for chemical examination. In such circumstances, it is submitted by the learned Advocate of the appellant No. 3 that the impugned judgment and order of conviction and sentence suffer from serious illegality and the same should be set aside. 8. MR. Kazi Safiuddin Ahamed, the learned Advocate along with MR. Manas Kumar Das, the learned Advocate appearing for the appellant Nos.1, 2, 4, 5 and 6 adopts the arguments advanced by MR. Adhikary, the learned Advocate of the appellant No.3. Ms. Minoti Gomes, the learned Advocate appearing for the State, in her usual fairness, submits that this was a case in which investigation was conducted in a lackadaisical manner and the entire investigation was defective one. There was no seizure of blood-stained earth or controlled earth or wearing apparels of the victim and nothing was sent to F.S.L. for chemical examination. There was no seizure of weapon of assault. It is fairly submitted by the learned Advocate of the State that although the three witnesses, namely, P.W. Nos. There was no seizure of blood-stained earth or controlled earth or wearing apparels of the victim and nothing was sent to F.S.L. for chemical examination. There was no seizure of weapon of assault. It is fairly submitted by the learned Advocate of the State that although the three witnesses, namely, P.W. Nos. 3, 7 and 8 claimed themselves to be the eye-witnesses to the alleged incident of assault, a collective reading of their depositions, makes It clear that they cannot be the eye-witnesses to the alleged incident of assault. The presence of the P.W. Nos. 7 and 8, it is submitted by the learned Advocate of the State, was also doubtful. It is clear from the evidence of P.W. 11, the Investigating Officer of the case, who stated in his cross-examination that P.W.7 never stated to him that after going to the place of occurrence, she found the accused appellants assaulting her father with a 'Da'. It is also pointed out by the learned Advocate of the State that P.W.8, who was examined by the Investigating Officer, stated before him that he did not know anything about the assault and he stated Ke ba kahara ei aghat kareche dekhi nai". 9. IT is finally submitted by the learned Advocate of the State that in such circumstances, it is very difficult to say that the alleged incident took place in the manner and at the place, as it has been alleged by the prosecution. 10. WE have heard the learned Advocates of the respective parties. WE have also perused the entire evidence on record. After considering the total evidence on record, we find sufficient merit in the submission made by Mr. Adhikary, the learned Advocate of the appellant No.3. Conviction in the present case is mainly based on the evidence of P. W.Nos.3, 7 and 8. After considering the evidence, we find that the presence of those three witnesses at the place of occurrence, is quite doubtful, which we have already discussed above. There was no seizure of weapon of assault and there was no seizure of any blood-stained earth, controlled earth or wearing apparels of the deceased and nothing was sent to the F.S.L. for chemical examination. 11. There was no seizure of weapon of assault and there was no seizure of any blood-stained earth, controlled earth or wearing apparels of the deceased and nothing was sent to the F.S.L. for chemical examination. 11. AFTER hearing the learned Advocates of the respective parties and considering the entire evidence on record, we are of the view that the impugned judgment and order of conviction and sentence suffers from serious illegality. 12. ACCORDINGLY, we allow the appeal and set aside the impugned judgment and order of conviction and sentence. The accused appellants are acquitted of the charges framed against them. The accused appellant No. 3, who is now in jail custody, shall be set at liberty forthwith, if he is not wanted in any other case. So far as the other appellants, namely, the appellant Nos.1, 2, 4, 5 and 6 are concerned, they are also acquitted of the charges framed against them and they will be discharged from their respective bail-bonds. Since the main appeal is disposed of, the application filed by the appellants for suspension of sentence being C.R.A.N. No.2281 of 2009 is also disposed of as the same has become infructuous. 13. CRIMINAL Section is directed to supply the urgent certified copy of this order to the learned Advocates for the respective parties forthwith, if applied for. Prabhat Kumar Dey, J.: I agree. Appeal disposed of.